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Friday, July 31, 2009

The deep red South seems to be awash these days in sex crimes involving ministers.

Take South Carolina, which generally is considered the most conservative state in the country, both in terms of politics and religion. It and Mississippi might be the only two states that make my home base, Alabama, look progressive by comparison.

But religious leaders in South Carolina seem to have developed an alarming "affection" for boys.

Wilson was arrested recently for molesting and showing pornography to three teenage boys. The reverend was charged with three counts each of a lewd act upon a child under 16 and disseminating harmful material to minors.

A South Carolina newspaper reported that more victims might surface. How did Wilson "minister" to the boys?

One alleged victim told someone at Bible study that Wilson “fondled him” and showed him pornography over a period of two years, the report says.

The boy said Wilson would encourage him and other boys to perform sex acts on themselves at Wilson’s home, the report says.

Wilson also allegedly fondled the boy as he let the youth drive his car without a license, the report says.

A troubling story about another South Carolina minister broke yesterday, this time in Charleston. Ronald Jones, a 53-year-old pastor from Wadmalaw Island, is charged with second degree sexual conduct with a minor.

Another? Jeepers, how many have there been? Turns out there have been three cases in the past two weeks--in the Charleston area alone!

The victim in the Jones case was a 15-year-old boy. Here's how news accounts describe the situation:

The teen told authorities the assault happened at a baby shower at Jones' home last year. A police report states the teen said Jones invited him into his room to watch television, then asked the boy to perform a sexual act on him.

The Jones story broke on the same day that Pastor Tyrone Moore, of Full Word Ministries in North Charleston, was convicted on two counts of committing a lewd act upon a minor. Moore, who has a long history of sexual misconduct, was sentenced to back-to-back 15-year prison terms.

Assistant Solicitor Debbie Herring-Lash said a jury found Moore guilty of fondling two boys, ages 12 and 13, multiple times between 2004 and 2006 at his home in Berkeley County.

"The victims, now 16 and 14, had to go into the details of these assaults," Herring-Lash said. "One of the young victims lamented that he no longer wanted to attend church as a result of the assaults."

Gee, I can't imagine why.

Turns out a whole bunch of youngsters might not want to attend church in the future.

According to a post titled "This Week in Holy Crimes" at Open Salon, this summer has been a busy one behind the pulpit--and beyond. During one seven-day period in late June, ministers in Texas, Missouri, Florida, South Carolina, Arkansas, Minnesota, New Jersey, Pennsylvania, and New York were connected to sex crimes.

Not to be outdone, Alabama has its own wayward pastor in the news. His victim was a 14-year-old girl. William David Webb, former youth minister and executive pastor at Word of Life Christian Center in Birmingham, was sentenced yesterday to five years in prison after pleading guilty to transporting a minor girl across state lines for sex.

Thursday, July 30, 2009

Now let's take a second look at this issue to determine just how loony the government is in its efforts to make sure Fuller does not grant a motion to recuse filed by Siegelman codefendant Richard Scrushy.

First, the second line of the government's response mentions that William M. Welch, chief of the U.S. Public Integrity Section, is taking part in the proceedings. That's the same William Welch who is under investigation for criminal contempt in the case of former U.S. Sen. Ted Stevens (R-AK). You would think that might give prosecutors some pause. But, no, it's full steam ahead.

The government asserts that the U.S. 11th Circuit Court of Appeals found juror e-mails in the case to be authentic, but still ruled against Siegelman and Scrushy. Prosecutors fail to note the content of the e-mails between jurors Katie Langer and Sam Hendrix. Here are a few of the missives, as reported by David Fiderer at Huffington Post:

Sam:

gov & pastor [i.e. defendant Richard Scrushy] up s--t creek.

good thing no one likes them anyway.

all public officials r scum; especially this 1. pastor is reall a piece of work

. . . they missed before, but we won't

. . . also, keep working on [juror number] 30...

will update u on other meeting

Katie

Here is some more e-mail insight from Langer to Hendrix:

Judge really helping with jurors still having difficulties with #30. . . any ideas???

Keep pushing on ur side.

Did not understand your thoughts on statute

But received links.

Katie

The government is arguing that those e-mails are authentic, but they do not constitute juror misconduct, which would merit a new trial. If these e-mails are not juror misconduct, then what is?

Finally, prosecutors seem to be confused about the concept of judicial recusal. Here are a few facts about the concept that the government does not want you to know:

* A U.S. Supreme Court case held: “Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Liteky v. U.S., 114 S Ct. 1147, 1162.

* Another federal case held that a judge has a legal duty to disqualify himself, even when no motion asking for his disqualification has been presented, if he knows of grounds for his recusal. United States v. Balistrieri 779 F.2d 1191 (7th Cir. 1985). (In the Siegelman case, Judge Fuller received a $178 million contract from the U.S. government, the opposing party. Does that not call his impartiality into question?)

* Courts have found: “It is important that the litigant not only actually receive justice, but that he believes he has received justice. Justice must satisfy the appearance of justice." Pfizer Inc. v. Lord, 456 F 2d 532 8th Cir 1972.

Is there an appearance of justice in the Siegelman/Scrushy case? That could only exist in the warped minds of the prosecutors.

If that's the case, the Obama crowd soon should turn its attention to Birmingham. As we have reported here at Legal Schnauzer, the University of Alabama at Birmingham (UAB) apparently has engaged in massive research and Medicare fraud that dates back to the 1990s.

One whistleblower in the UAB case, forensic accountant Thomas Gober, estimated the total fraud to be almost $600 million. Under federal law, that means the government should have been able to recover about $1.5 billion in damages. The Bush Justice Department allowed UAB to settle the case for about $3.4 million, way less than one percent of the alleged total.

Given the soft "penalty" UAB received in the 2005 settlement, there is little reason to think the university has changed its ways.

"We have made a remarkable, robust effort here to try to bring home the bacon," says Richard Marchase, vice president for research at UAB. "It's a big deal."

Is the Obama administration going to send $80 million to an institution with a recent history of committing health-care fraud?

Has anyone reviewed the methods UAB has used in the past to "bring home the bacon"?

Is anyone going to investigate UAB's current practices before writing out a big federal check?

Alabamians, who voted against Obama in large numbers, seem more than happy to receive federal dollars from the president now. But shouldn't those funds go to institutions or organizations that have shown they are good stewards of taxpayer money.

The government farcically argues that the trial judge and 11th Circuit decided in my case that the system operated fairly for me because the trial judge assumed that the emails from Juror # 7 and Juror # 40 were "authentic" and so when he denied our motion for a new trial, based on those emails, both Courts said that it's OK for jurors to be emailing each other before the close of the Government's case, OK to be in a a conspiracy to subvert the defendant's constitutional right to a fair trial.

Siegelman is quick to point out that jurors were not e-mailing each other about the outcome of the previous night's episode of Lost:

Keep in mind what these jurors were saying and what they were trying to do. The emails revealed a deep hidden prejudice against both me and Richard Scrushy and just as important, the emails showed that the jurors were violating the order of the Court and plotting to get other jurors to vote for a conviction!

Prosecutors, indoctrinated in the win-at-all-costs ethos of the Bush Justice Department, seem to have no problem with this scenario. They also repeatedly refer in their motion to the fact that the U.S. 11th Circuit Court of Appeals upheld most of the convictions against Siegelman and Scrushy.

How in the world can anyone have respect for a system of justice if this kind of conduct is given a stamp of approval by a trial judge and a Court of Appeals? According to the United States Government these courts have just said that jurors are now free to conspire by email or text messaging during the course of a trial and are free to conspire with one another to try to get votes for a conviction even before the evidence and witnesses have been heard.

And here's the really big question?

How can The United Sates Government think that such a judgment promotes public trust and confidence in the fairness of our judicial and court systems?

Of course, you could scoop a dead armadillo off the highway, prop it in a chair, give it an office in downtown Birmingham, and have an improvement on Alice Martin.

But is Vance what the citizens of her district need to really see that justice is served--after eight years of having the office used as a political weapon? I have my doubts.

A tidbit from a recent article in The Birmingham News shines light on one of my concerns:

The Justice Department also said Vance would not participate in any matter involving the state court system without prior approval because of her husband's job as a circuit judge in Jefferson County.

Not only is Robert Vance Jr. a judge, he's a bad judge. (And for the record, he's a Democrat, appointed by Don Siegelman.) I know Robert Vance Jr. is corrupt because I've seen it with my own eyes and presented the details in a recent post:

Is Joyce White Vance going to take a serious look at the corruption that permeates the courthouses and law firms in her district? I doubt it.

It's particularly unlikely when you consider that Robert Vance Jr. is one sorry excuse for a judge. I know because I've seen him operate in an up-close way. And he's a Democrat, by the way.

Vance was assigned to a legal-malpractice claim I filed against the first attorneys I hired to defend me against a bogus lawsuit from my criminally inclined neighbor. The attorneys were Jesse P. Evans III and Michael B. Odom, and at the time, they were with the Birmingham firm of Adams & Reese/Lange Simpson. They since have shuffled on over to Haskell & Slaughter.

To put it in a short and not-so-sweet way, Robert Vance Jr. screwed me to the wall. He dismissed my lawsuit when, by law, it could not be dismissed. I will go into details in a future post, but it's elemental stuff. Anyone who knows a thing about Rule 12(b)(6) of the Alabama Rules of Civil Procedure, and checked the public file, would readily see how Vance cheated me. (By the way, I'm pretty sure that Rule 12(b)(6) is standard in all jurisdictions, federal and state. It deals with motions to dismiss, which are supposed to be granted only in rare circumstances, none of which existed in my case.)

Why did Robert Vance Jr. cheat me? Here are two reasons I can think of:

* Vance wanted to ensure that his lawyer cronies, Evans and Odom, did not have to testify under oath in depositions about how, and why, they cheated one of their clients--after billing me for roughly $12,000.

What else do we know about Joyce White Vance:

* Before becoming a federal prosecutor, she worked for one of Birmingham's "main line" law firms--Bradley Arant Rose & White;

* She lives in the Birmingham area's premier "over the mountain" kingdom--Mountain Brook;

* She is inextricably tied to Birmingham's legal establishment--and probably the corporate establishment, as well.

Here is one of the many problems that have persisted in the Northern District for at least the past eight years: In Alice Martin World, corruption involved only politicians--almost always Democrats, often folks of color. The corrupt politicians tended to be folks like the mayor of Birmingham (which is majority black), members of the Jefferson County Commission (based in majority-black Birmingham), and state legislators from Birmingham's western suburbs (which are heavily black).

When's the last time you heard about a federal investigation of a public official from one of Birmingham's eastern and southern (heavily white) suburbs? When's the last time you heard about a federal investigation in affluent and heavily white Shelby County--of a county commissioner, sheriff, judge, dog catcher?

I can't recall such a case. But consider this: My experience has been that corruption is most likely when, and where, big bucks are present. And big bucks tend to be present with suburban development--shopping centers, office parks, residential communities.

Where is most of that development taking place in metro Birmingham? In Hoover, Vestavia Hills, Homewood, Trussville, Northy Shelby. Are we to believe that no palms ever get greased--that no bribes are taken, no fraud committed--when huge dollars change hands in Birmingham's suburbs?

Would The Birmingham News trumpet the need for public-corruption investigations if those inquiries focused on the heavily white suburbs? I doubt it.

How many of Birmingham's main-line law firms are involved in developments that spring up on the city's perimeter? Do those law firms ever engage in wink-wink deals that betray the public trust and probably violate federal law?

My guess is that the answer is yes?

Is Joyce White Vance the kind of U.S. attorney who will look into that kind of activity? Will she look beyond alleged political corruption and take a hard look at courthouses, law firms, and corporate suites? Will she take a hard look at our area's largest employer, the University of Alabama at Birmingham (UAB), where President Carol Garrison is running a once-proud institution into the ground--violating the public trust in myriad respects?

I hope I'm wrong, but I doubt it.

Robert Vance Jr. clearly is devoted to protecting big-firm lawyers--and the corporations they thrive on like parasites. Why should we expect his wife to be any different?

Tuesday, July 28, 2009

Was President George W. Bush briefed about the U.S. attorney firings or the political prosecution of former Alabama governor Don Siegelman?

The public might never know the answer to that question, thanks to a deal brokered by the Obama White House to obtain Karl Rove's testimony before the U.S. House Judiciary Committee.

An investigative report by Larisa Alexandrovna and Muriel Kane at Raw Story says the deal includes several unusual provisions. And they appear designed to protect Bush from inquiries about his possible involvement in the U.S. attorney firings, the Siegelman prosecution, or both.

One provision in the deal says members of Congress will not be allowed to see four pages of material, but will have those pages described to them. Raw Story reports:

Perhaps the most mysterious clause in the agreement is a reference to four pages of material which Congress will not be allowed to see but will only have described to them: “With the exception of 4 pages of particularly sensitive privileged material (which will be described for Committee staff by a representative of the former President), Committee staff (majority and minority) will be allowed to review the documents for the period December 2004 through March 8, 2007.”

Officials with the House Judiciary Committee refused to comment on the provision.

What does it mean? Raw Story tackles that question:

Scott Horton, a Columbia Law School professor and contributor to Harper’s Magazine, believes the “4 pages” may relate to briefings of the former president on either the US Attorney firings or the Siegelman prosecution.

“My bet is that these four pages touch in some way on communications with the president and thus are close to the heart of the legitimate claim of executive privilege,” Horton explained in an email exchange. “The process of ‘describing’ [and] withhold has a legitimate basis [if these were presidential briefings.]”

Raw Story explains the legalities behind executive privilege:

There are two forms of executive privilege. The weaker, known as the deliberative privilege, covers policy-making discussions among presidential advisers. The presidential communications privilege, which is much stronger and less likely to be challenged, is restricted to communications made directly to the president.

If those four pages are being kept secret under the presidential communications privilege, it could imply that Rove may have discussed one of the two scandals with President Bush at the time of its occurrence. Rove has denied having played any role in the Siegelman case, and the Bush administration has never claimed executive privilege in that area, but it has done so repeatedly with regard to the US Attorney firings.

Legal experts also are puzzled by the role Obama White House Counsel Greg Craig played in brokering the deal. Why did Craig play such a leading role? Raw Story posed that question to Scott Horton:

“That’s a question for Greg Craig, since he has personally put himself on the line in this matter,” Horton said. “My sense is that they have a legitimate interest in privilege issues, but also that they have been far more deferential to Rove and Miers than the circumstances warrant. And in the background we have the troubling fact that Rove is a former client of Craig’s. Which explains why he should never have involved himself in this.”

Also troubling is a provision that allowed Rove to testify without being under oath:

Horton points to Rove’s extreme measures to avoid testifying in this investigation as indicating that he may be trying to avoid revealing some very damaging information:

“Rove has a long track record of making false statements under oath and always wiggling his way out of being prosecuted for it,” Horton stated. “In this case his efforts to avoid testimony have been extraordinary, which points to there being very damaging facts he wants to avoid. Now it will be up to Congress to get to the bottom of the matter.”

Monday, July 27, 2009

Why have Republicans come to dominate the South over the past 40 years or so?

The No. 1 reason almost certainly is the GOP's willingness to play on the race-based fears of many white folks. But ineffectual leadership from Democrats has not helped matters.

In Alabama, prominent Democrats spend a fair amount of time attacking people they should recognize as friends. I know because I've been the target of such attacks.

First, came pot shots on a progressive listserv from G. Douglas Jones, former U.S. attorney for the Northern District of Alabama under Bill Clinton. Jones took exception to one of our posts questioning the role of Rob Riley, son of Republican Governor Bob Riley, in a massive federal lawsuit against a number of entities and individuals connected to Birmingham-based HealthSouth Corp. Jones and Riley serve as co-liaison counsel for plaintiffs in the HealthSouth case, even though both had prominent connections to the Don Siegelman criminal case--in which the former Alabama governor's codefendant was former HealthSouth CEO Richard Scrushy.

Now we have another listserv pot shot from a Democrat. This time it's from C. Redding Pitt, a former U.S. attorney for the Middle District of Alabama and a former chairman of the Alabama Democratic Party.

Pitt apparently didn't much care for a couple of our posts that raised this question: Did Doug Jones have a conflict of interest when he represented Siegelman in a criminal matter while helping to sue the former governor's codefendant in a civil matter? Our posts were titled:

There is no connection factually, or in any other respect, between the Richard Scrushy civil fraud cases currently being litigated, and the matter involving Richard Scrushy's raising and contributing money to the lottery proposed in 1999 by Governor Siegelman to provide college scholarships for Alabama's youth.

Any suggestion that Doug Jones, by virtue of representing Don Siegelman at any point in time, gained knowledge of internal operations at HealthSouth is pure fabrication, and defamation. Any intimation that Don Siegelman himself had any knowledge whatsoever of the internal operations of HealthSouth is utter fabrication.

These articles are inaccurate. I don't know the writer's intentions regarding Doug Jones, but it is difficult to avoid the conclusion that this article is dishonest as well. It is, at an absolute minimum, misinformed.

This is a peculiar missive from Pitt. First, I'm hardly alone in raising questions about possible attorney conflicts between the Siegelman/Scrushy criminal case and the HealthSouth/Scrushy civil case; Sam Stein, of Huffington Post, first raised the issue more than a year ago. Second, as a lawyer, Pitt should be careful about throwing around terms like defamation. That word has a specific legal meaning, and Pitt should know that there is nothing defamatory about my posts regarding Jones and Riley. Third, Pitt's statement about Siegelman is beyond bizarre; I never said a thing about Siegelman having internal knowledge of HealthSouth operations.

Why would Pitt make such a ridiculous statement and send it to a progressive listserv in Alabama? My guess is that, on behalf of his pal Jones, Pitt wanted to turn Siegelman supporters against me.

Here is the paragraph from Legal Schnauzer that probably irritated Pitt and Jones the most:

Do Riley and Jones stand to benefit financially from those possible conflicts? Sure looks like it, based on a motion for attorney fees they recently helped file in the federal HealthSouth litigation.

Jones seems to like his image as a lawyer who cares about civil rights, the guy who successfully prosecuted the 16th Street Baptist Church case. In fact, an article in today's Birmingham News furthers Jones' image as a guy who cares about victims of injustice.

Jones probably is less enthused about reports, such as ours, that make him look like a money-grubbing lawyer. In fact, my guess is that Pitt and Jones are uncomfortable with the public having any sense of how much money plaintiffs' attorneys stand to make from the HealthSouth case. They also are likely displeased that I raised legitimate questions about Jones' possible conflicts in the Siegelman case.

So what do they do? They attack a blogger who has been one of the most consistent voices in support of Don Siegelman.

Maybe that's because they want to take the focus away from these questions: Why did Doug Jones stay on the Siegelman defense team for roughly 18 months after learning that Richard Scrushy would be a key part of the government's case against Siegelman? Was Siegelman immediately informed that Jones was leading a lawsuit against the man who was likely to become the former governor's codefendant?

It's interesting that Jones and Pitt never seem to address such questions in their listserv pot shots. Maybe that's why they choose that format, as opposed to writing or calling me directly.

Also, a fellow Alabama blogger has been trying to arrange interviews with Jones and Pitt on a variety of topics and, so far, they keep wiggling off the hook.

As for party affiliations, Legal Schnauzer never has been about that. Our very first post, which serves as a sort of mission statement, says nothing about supporting a political party, campaign, or candidate. It says our intent is to shine light on a broken justice system--and that remains our goal.

It certainly would be fair to describe our political leanings as progressive. And with the Democratic Party generally considered the home for progressive ideas, you might expect us to be in good standing with Alabama Democrats.

So what is it with Jones and Pitt? Do their progressive ideals go out the window when millions of dollars in attorney fees are at stake?

On a personal level, I will raise this question: Does Doug Jones know anything about my unlawful termination at the University of Alabama at Birmingham (UAB)? I find it interesting that I was fired roughly one month after first writing about Rob Riley's curious involvement in the HealthSouth lawsuit. We now know that's a topic Doug Jones doesn't like to see raised.

We also know that Doug Jones has represented UAB administrators in perhaps the ugliest legal case in school history. (Jones portrays himself as a friend of civil-rights advocates, but he defended UAB in a civil-rights lawsuit that involved allegations the university allowed a 14-year-old female student to be used as a sexual plaything by Blazer athletes.)

Finally, we know that Jones' current law firm--the Republican-oriented Haskell Slaughter--has extensive ties to UAB. Much more on that coming up.

Jones and Haskell Slaughter stand to make a killing off the HealthSouth lawsuit. But a little more than a year ago, they had a UAB employee writing an unfavorable article on his personal blog about plaintiff's lawyers in that case. Is it possible that Haskell Slaughter used its influence at UAB to get said employee unlawfully fired?

Now that's an interesting question. It's one of many that Doug Jones and Redding Pitt don't seem to want to answer these days. They are more interested in taking pot shots at a blogger who really does care about progressive ideas.

Much has been written about the political prosecution of former Alabama Governor Don Siegelman, and much of it has focused on the governor himself and those who targeted him.

But what about the Siegelman family? What is it like to see your husband/ father/son/brother sent to prison for bogus reasons? What's it like to know that a loved one can become a political prisoner in modern America?

Dana Siegelman, who lives in California where she attended college, recalls how she first learned that her father was facing serious trouble:

I was 19 when the case was introduced to me [2004]. The way it was introduced is especially interesting. I was asleep at home in Birmingham. I had started school at California State University in Long Beach and was home for the summer interning at a company and saving money before I moved back for my sophomore year.

Both Mom and Dad were out of town, so I was baby-sitter on duty for my younger brother. The doorbell rings, it's around 8 a.m. I roll out of bed; my curly hair had become an Afro, no make-up, boxer shorts, and t-shirt. All I can see is a young man through the art glass window on the door. I open the door and surrounding the entrance there are suddenly cameras snapping and approximately 5-8 video crews that are filming. At this realization, I shut the door but a crack and ask the young man what is going on. He sticks a mike in my face and says "Your father has been indicted, what do you think about it?"

Dana Siegelman had confidence in her father's innocence, but she looked into the facts and the law herself:

I was going into my sophomore year and was home for the summer. I knew my dad was a good person, yet, I also know how important knowing the facts are. So, I did my own research on his case so I would understand it and see for myself whether or not he seemed guilty. I came to the conclusion that our government is full of s***! No one ever believed he would be convicted. Even people who didn't vote for him were surprised when the second indictment brought a conviction. Not only that, but most people thought it suspicious that the second indictment came when Dad announced he was running again. If he had stayed out of the race, then they would have saved taxpayers' money.

How has the prosecution affected the Siegelman family:

This has by far been the most challenging experience of my life, and also the most rewarding. Even though it's broken our family financially, and, at first, spiritually, our relationships with one another have grown. We have had each other to lean on. All of us stepped out of our comfort zones to help with my dad. We never thought we'd be visiting this incredible man in prison, but it only proved that he continued to deserve the respect and admiration we'd always had for him.

What was it like to visit her father in prison?

When I came back to Alabama, my dad had finally been situated in the Oakdale penitentiary in Louisiana. Before that, he was moved from Georgia, to Oklahoma, to Texas, and finally, to Louisiana. Because he was moved around so many times, I was unable to speak to him or even write him for two and a half months! Once I was in Alabama, I visited him often, which was a difficult feat considering it was an eight-hour drive each way. Visitations were on Saturday and Sunday from about 9 a.m. to 4 p.m. Then, we would head back home.

What was it like trying to get through college while her family was caught in a legal storm?

All four years in college, no one knew anything about my dad's case. In fact, my friends only knew him to be a lawyer. It was not until he was actually sentenced and taken away abruptly in handcuffs and shackles that I reached out to everyone I knew for help.

I don't know anyone who could have handled that experience with as much confidence, positiveness, and grace (as my dad did). It was a testimony to his character and we have learned from it. In fact, if it were not for Dad going to prison, I don't know if the government or the American people would have paid nearly as much attention to other politically motivated cases.

The answer to the first question is "pretty darned big." The answer to the second question is less clear. And having been the victims of bad acts by some pretty bad people, Mrs. Schnauzer and I have been pondering that question quite a bit lately. I wonder if other victims of Bush-era "justice"--Don Siegelman, Paul Minor, and others--are doing the same thing.

As for Drake, he seems to have a poor understanding of imprecatory prayer. The notion grew out of the Old Testament Book of Psalms and has to do with seeking justice against enemies. The psalmist seems to be speaking of individuals who have genuinely done him harm.

Drake says his prayers against Obama grew largely from the president's support of abortion rights. But there appears to be no justification in the Bible, or any other legitimate religious/philosophical text, for wishing ill upon those who simply disagree with you on some issue. Obama hardly would fit the definition of Drake's "enemy."

But what about those who truly have enemies--and have been harmed by them? Are they justified in praying that their enemies be vanquished?

A few years ago, mindful of Jesus' teaching that you are to "love your enemies, and pray for those who persecute you" (Matthew 5:44), I probably would have said no. But I'm starting to rethink that--for two reasons.

One, until about eight or nine years ago, I wasn't aware that I had any enemies. I didn't know what it was like to have someone intentionally harm me and those I care about.

Two, I married someone who has a little different worldview from mine. Mrs. Schnauzer is one of the most good natured people you would ever want to meet. But she has an edge to her--a "screw with me at your peril" mindset. Her family roots are mostly in the Slavic region, and she claims to have a "Serbian temper." I call it her "vengeance is mine, sayeth the Lord" attitude.

A few years back, Mrs. Schnauzer was the victim of a mugging. Did she pray for the person who had victimized her? Not exactly. She obtained a gun and took classes on how to use it. In fact, she still knows her way around a firearm, and while a progressive on most issues, she's a bit of a Republican when it comes to guns and their use for protection.

I've never been much of a gun person, but I'm starting to think my wife has a point. After all, we've learned through hard experience that the justice system is just as likely to violate you as protect you.

Long before the Wiley Drake story made the press, Mrs. Schnauzer was a fan of the imprecatory Psalms. Here are a few of her favorites:

* Psalm 55:15 - Let death take my enemies by surprise; let them go down alive to the grave.

Psalm 58:6 - O God, break the teeth in their mouths.

Psalm 69:28 - May they be blotted out of the book of life.

Psalm 109:9 - May his children be fatherless and his wife a widow.

Psalm 137:9 - How blessed will be the one who seizes your infants and dashes them against the rocks.

Wow, the psalmist definitely had issues with a few folks! And I can feel his pain. In fact, Psalm 83 has become one of my favorites:

O my God, make them like the whirling dust;Like chaff before the wind.Like fire that burns the forest.And like the flame that sets the mountains on fire.So pursue them with Thy tempest,And terrify them with Thy storm . . .And let them be humiliated and perish.

The imagery of my enemies being tormented by fire and storms is . . . well, pretty nice. And that last part about humiliation and death--sounds good to me.

Have Mrs. Schnauzer and I become awful people? I don't think so. The Psalms make it clear that bad people have been screwing around with regular folks for a very long time. Like the psalmist, we know that it's not much fun to be on the receiving end of such treatment.

Is it wrong to want to fight back, particularly when it has become clear that the justice system isn't likely to protect you? I think not. In our case, we've given the justice system about nine years to set matters straight--and it's only made things worse.

So excuse me if I think imprecatory prayer sounds pretty darned good.

As for Wiley Drake, I suspect he doesn't understand imprecatory prayer because he's probably never had someone intentionally do him harm. With no true enemies, he has to create them out of thin air.

Mrs. Schnauzer and I know what it's like to have bad people try to ruin you. Perhaps that's why we can identify with the psalmist's imprecations.

And it's interesting that imprecations are spread throughout the New Testament, as well. Consider Matthew 26:24:

Woe to the man by whom the Son of Man is betrayed! It would have been good for that man if he had not been born.

Sunday, July 26, 2009

A new unsavory chapter in the conservative sexcapades at C Street House is based in Mississippi. But explosive evidence in the case of former U.S. Rep. Charles W. "Chip" Pickering (R-MS) could cause repercussions well beyond the Magnolia State.

Pickering, like Sen. John Ensign (R-NV) and Gov. Mark Sanford (R-SC), lived at a "Christian fellowship home" on C Street in Washington, D.C. Ensign and Sanford have been the subjects of adultery scandals in recent weeks, and now we learn that Pickering's estranged wife is suing the former Congressman's alleged mistress for alienation of affection.

Max Blumenthal, of The Daily Beast, reports that Chip Pickering kept a diary about his extramarital activities and identifies other C Streeters who became his enablers in adultery.

The Pickering diary could become key evidence in his estranged wife's lawsuit. But Mississippi Republicans are applying a full-court press on the state's courts to keep the diary's contents from public view. Reports Blumenthal:

The release of Pickering’s diary would likely have an electrifying effect, reigniting media interest in his dalliance and drawing renewed attention to the C Street evangelical men’s group to which he and other Republican lawmakers have belonged.

What might Pickering's diary reveal? Blumenthal clues us in:

And according to a divorce filing by Pickering’s estranged wife, Leisha, the former congressman’s diary reveals the identities of several men who enabled his adulterous trysts and helped him cover his tracks.

So who were Pickering’s enablers? Are they or were they ever C Street House residents? And what role did they play, if any, in helping Pickering transform a house that hosted a “Christian men’s accountability group” into his love nest?

Pickering was elected to Congress in 1996 and retired in January 2009. Interestingly, the first six years of Pickering's tenure in Washington dovetails with that of former Congressman Bob Riley, who now is governor of Alabama.

Bob Lowry, of The Huntsville Times, recently reported that Riley had been a C Streeter. The story, titled "Riley Recalls Bible Study at C Street House," quotes Riley as saying he was a regular at weekly Bible studies but doesn't remember other activities at C Street.

If Pickering's diaries come to light, perhaps they will help jog his memory.

Thursday, July 23, 2009

We have shown that the U.S. 11th Circuit Court of Appeals ruled unlawfully on multiple grounds in the Don Siegelman/Richard Scrushy case. And we have posited that such judicial butchery almost had to have been done intentionally.

So we are left with this question: Why did the 11th Circuit cheat Siegelman and Scrushy?

Our best guess? Montgomery, Alabama, could be described as the "base camp" for Republican corruption during the George W. Bush administration--and going back even further, at least to the mid 1990s. An honest ruling by the 11th Circuit would have focused attention on trial judge Mark Fuller, U.S. Attorney Leura Canary, and their home base of Montgomery. The 11th Circuit, which is dominated by Republican appointees, clearly did not want that.

What we have, in our estimation, is an attempted judicial coverup. And it seems unlikely that the 11th Circuit acted in a vacuum. The court's bogus ruling probably was the result of significant external interference, meaning our federal courts are more poisoned and politicized than many of us can imagine.

An honest ruling by the appellate court would have shown that Fuller and federal prosecutors in the Siegelman/Scrushy case are corrupt political hacks. And it's possible that might have gotten the attention of a Justice Department that now is controlled by a Democratic administration. Granted, the Obama DOJ has shown no sign, so far, of having a spine. But in theory, an honest ruling from the 11th Circuit would have spelled out the myriad ways Fuller acted corruptly--possibly prompting investigators to look into some very dark corners of Montgomery, Alabama.

What might a serious investigation turn up in Alabama's capital city? Let's consider a few storylines that have strong connections to Montgomery:

* In the mid 1990s, Republican political consultant Karl Rove initiates a campaign to take over Alabama state judgeships. Rove's success, fueled with dollars from pro-business groups such as the U.S. Chamber of Commerce, leads to similar efforts in other states. Rove's compadre in this initiative is Bill Canary. And Canary's home base is . . . Montgomery, AL.

* Republican Bob Riley wins the 2002 governor's race with the help of votes for Democrat Don Siegelman that mysteriously disappear overnight. It later is disclosed that Riley's campaign is aided by millions of Indian gaming dollars that are laundered through disgraced GOP consultant Jack Abramoff. Riley's home base for the past eight years or so? Montgomery, AL.

* Attorney/journalist Andrew Kreig reports that Fuller's company, Doss Aviation of Colorado Springs, Colorado, was awarded $300 million in federal contracts from the time Fuller began presiding over the Siegelman case in 2005. Scott Horton, of Harper's, reports that a 2002 filing shows Fuller is president of Doss Aviation, and his address is listed at the federal courthouse in . . . Montgomery, AL.

* Attorney and whistleblower Jill Simpson reveals that she was told U.S. Senator Richard Shelby (R-AL) owned and controlled Doss Aviation out of the Federal Courthouse in Montgomery. Doss mail was forwarded to Shelby's Senate office, but it originally was sent to . . . Montgomery, AL.

* Time magazine reports that lobbyist and landfill developer Lanny Young, a key witness in the Siegelman case, makes allegations of money laundering and bribery against U.S. Senator Jeff Sessions (R-AL) and former Alabama Attorney General William Pryor (who now just happens to serve on the U.S. 11th Circuit Court of Appeals). These allegations, which are largely ignored by the Bush Justice Department, appear to have their genesis in . . . Montgomery, AL.

* Let's not forget George W. Bush's extensive connections to a certain central Alabama city. While in the National Guard, Bush reportedly drilled at Maxwell Air Force Base in late 1972 and early 1973. He also worked on the U.S. Senate campaign of Winton Blount, a family friend.

We probably are only scratching the surface here. The mind spins with what might be revealed from a serious investigation of actions in Montgomery over the past 10 to 15 years.

Did the 11th Circuit know this when it cheated Siegelman and Scrushy? The answer is almost certainly is yes.

Was the appellate ruling designed to keep a lid on the boiling vat of GOP sleaze that has been brewing in Montgomery for a long time?

Wednesday, July 22, 2009

Explosive news has been breaking in recent days from motions for a new trial in the case of former Alabama Governor Don Siegelman and former HealthSouth CEO Richard Scrushy. It's worth noting that the Siegelman/Scrushy motions would not have been necessary if the U.S. 11th Circuit Court of Appeals had done its job.

We showed in a recent series of posts that the 11th Circuit made multiple unlawful findings in upholding most of the convictions in the Siegelman case. Now might be a good time to review the judicial hatchet job the 11th Circuit administered on the Siegelman/Scrushy appeal.

What did we learn from our multi-part series about the appeal? Clear law required the 11th Circuit to overturn the Siegelman/Scrushy convictions. But the appellate court botched its ruling on at least five key issues. And we're not talking about complicated stuff here. I don't have the first day of law school, and I could rather easily determine the many areas where the 11th Circuit got it wrong. All the court had to do was follow its own precedent--and it couldn't even do that.

How do you explain such judicial butchery? Two words come to mind--incompetence and corruption.

One member of the three-judge panel is in his mid 80s and another is about to hit 80. But I don't think these judges are senile, and thus, incompetent. So I think we are looking at corruption.

Why did the 11th Circuit uphold a trial-court judgment that it had to know was unlawful? I have some theories on that, and we will get to those in a bit. But first, let's review the five key issues where the 11th Circuit got it wrong:

* Statute of limitations--It's undisputed that the alleged actions that made up the government's bribery charge against Siegelman and Scrushy took place outside the five-year statute of limitations. So how did the government get away with bringing this case, much less winning it? It drafted an indictment that was vague, and when Siegelman/Scrushy moved for a bill of particulars that would have required a few specifics, the judge denied it. Defense attorneys raised the limitations defense in a proper manner for a case involving a vague indictment. But the trial court, and the 11th Circuit, wrongfully ruled that they had waived the defense.

* The fundamentals of bribery laws--It's undisputed that the controlling law in the Siegelman case was McCormick v. United States, 111 S. Ct. 1807 (1991). The 11th Circuit admits this and even correctly states that McCormick finds that an "explicit agreement" must be present to obtain a bribery conviction. But the 11th Circuit then turns around and claims the Siegelman team cites the need for an "express agreement." The Siegelman team, however, does not make this argument. Essentially, the 11th Circuit puts words in the mouth of the Siegelman team. And that's how the appellate ruling gets it wrong on the basics of bribery law.

* Jury instructions--This could not be more clear. McCormick requires an "explicit agreement." The trial court's jury instruction did not require an "explicit agreement," and thus was unlawful. But the 11th Circuit let it stand. The trial court's instruction focused on a "specific action." But McCormick makes it clear that bribery is not about any action that the parties might take; it is about an agreement, one that is explicit. The trial court did not follow the law, and the 11th Circuit let the bad jury instruction stand, meaning Siegelman and Scrushy were convicted for a crime that doesn't exist.

* Hearsay--Key testimony came when one former HealthSouth official said another (a non-witness) had bragged to him about helping the company secure a spot on a hospital-regulatory board. Normally, this would be inadmissible hearsay. But the judge allowed it under the "coconspirator exception" to hearsay. For the exception to apply, a conspiracy must involve both the declarant and the defendant against whom the statement is offered. That would be Don Siegelman. But there never was any evidence that Siegelman was involved in a conspiracy involving HealthSouth officials. The coconspirator exception was not applicable. The trial judge allowed it anyway, and the 11th Circuit let it stand.

* Insufficient evidence--At most, evidence showed that Siegelman thought Scrushy expected a spot on a hospital-regulatory board in exchange for his campaign contribution. But the law is clear that evidence of an expectation on the part of one party or another is not enough to support a bribery conviction. There must be evidence of an "explicit agreement" between the two parties. That kind of evidence was not present. But the 11th Circuit let unlawful convictions stand.

So we are back to our earlier question: Why did the 11th Circuit knowingly butcher this appeal? We will offer some theories in an upcoming post.

Meanwhile, all sorts of good stuff is coming out of the motions for a new trial. More is coming on that, too.

Tuesday, July 21, 2009

Federal prosecutors told a key witness in the Don Siegelman case that he could be implicated in a sex scandal, and they apparently used that revelation to coerce desired testimony from him.

That explosive charge, involving former Siegelman aide Nick Bailey, is included in an affidavit from Tuscaloosa, Alabama, businessman Stan Pate.

Andrew Kreig reports at Huffington Postthat Bailey now works for Pate and has told his boss about pressure tactics federal prosecutors used against him. Pate's affidavit is included as an exhibit in motions for a new trial recently filed by Siegelman and codefendant Richard Scrushy.

Pate states in his affidavit:

The "stick" that the government used with Nick was to threaten, expressly or implicitly, actions that would profoundly affect his personal life. I particularly remember that Nick was visibly shaken by a call he received at the office one day, when I was present, in which he was called by one of the prosecutors working on the Bobo case. (Nick said at the time, and since, that it was Matt Hart.)

The Bobo case, filed in Birmingham federal court, involved charges of health-care fraud against Siegelman, former chief of staff Paul Hamrick, and Tuscaloosa physician Phillip Bobo. Federal Judge U.W. Clemon dismissed key components of the case, causing prosecutors to drop it. That led to the trial against Siegelman and Scrushy in Montgomery on bribery charges, resulting in their convictions.

What did prosecutor Matt Hart say that caused Bailey to be visibly shaken? Kreig provides the story:

"Nick was told that the government was working to prevent the publicizing of an alleged sexual relationship between Nick and Don Siegelman," Pate wrote. "Nick also told me that one of the agents working the Siegelman/Scrushy prosecution asked him whether he had ever taken illegal drugs with Governor Siegelman or had a sexual relationship with him. These comments had a dramatic effect on Nick, and, in my observation, added significantly to the pressure he felt to go along with whatever the prosecutors wanted him to say."

Pate saw firsthand the impact the government's tactics had on Bailey. In his affidavit, Pate states:

The government's requirements of Nick and the approach they used had a profound effect on Nick. I watched him sit in his office day after day, like a student trying to become a teacher's pet, trying to think of things or people that might interest the government in hopes that doing so might help him avoid a prison sentence. But there was a balancing element in Nick's approach. He made it clear to me that he was trying to give the government what he thought would be valuable targets and information and thereby protect his friends and family and reduce his own punishment.

The Siegelman/Scrushy motions for a new trial include a report from Investigative Group Internationl (IGI), which is headed by former Watergate prosecutor Terry Lenzner. IGI says it was hired in April by "counsel for the defense."

An affidavit from IGI Vice Chairman David Richardson focuses heavily on Bailey and contradictions between his current statements and his trial testimony. In the affidavit, Richardson states:

Mr. Bailey told us that he did not believe Governor Siegelman had been bribed by Mr. Scushy; that he did not believe the governor had made a commitment to Mr. Scrushy to appoint him to the CON Board in return for his contribution to the Alabama Educational Lottery Fund; and that he did not believe that Governor Siegelman worried even for an instant that he ever would have to repay out of his own pocket the loan he had personally guaranteed--which was allegedly the personal benefit that the governor got as a result of Mr. Scrushy's contributions to the Educational Lottery Fund.

What is next in the Siegelman case? Kreig says things are heating up:

The gloves are off. Expect to hear much more about this case in the national media over the next few weeks, with 60 Minutes again working to stay in the lead.

Alexander Raya and David Corbitt accused a male human resources manager of sexually harassing them and then getting them fired in 2005 for bogus reasons when they reported his behavior.

Corbitt managed the Montlimar Drive store in Mobile, while Raya opened The Home Depot in Daphne in 2000 and later became manager in Pensacola.

A three-judge panel of the 11th U.S. Circuit Court of Appeals ruled that Chief U.S. District Judge Ginny Granade properly found in favor of the company on the sexual harassment claims.

But the panel determined that a jury should decide whether Home Depot USA fired Raya and Corbitt in retaliation for complaining about the conduct of Leonard Cavaluzzi Jr., who was regional human relations manager in 2005.

What was the key to the appellate court's ruling? The Press-Register reports:

"Significantly, Corbitt and Raya note that they were terminated 25 days after they made formal complaints of Cavaluzzi's harassment," the judges wrote.

I can identify with that time frame. My supervisor at UAB, Pam Powell, conducted a five-month harassment campaign against me not long after telling our staff that, upon her retirement, she intended to push for the promotion of one of my coworkers, Matt Windsor, as her successor. Windsor is a fine fellow, but he had roughly 20 years less experience than me.

I didn't give much thought to Powell's plans because I figured they would prove irrelevant in the end. When Powell retires, it probably will not be her place to name her successor; that task will fall to someone who still is employed at UAB.Based on my experience over 19 years at the university, I figured it would hire an external candidate to replace Powell, so I didn't plan to sweat it.

But I did think it was odd and inappropriate for Powell to disclose this plan to her staff. And it was certainly inappropriate for her to trash her superiors in the process. "I've worked too hard to let them tear apart this group when I'm gone," she told me with cold-blooded determination.

I took that to mean two things: (1) Powell didn't have much regard for Associate Vice President Dale Turnbough, who probably will appoint Powell's successor, or Vice President Shirly Salloway Kahn, whom Turnbough is likely to consult about the appointment; (2) Powell would do just about anything to get her way in the matter.

As Powell's behavior toward me took a turn for the worse in December 2007, I started to think "anything" might include slitting my professional throat. After all, UAB could easily scuttle Powell's plans by saying, "Look, we can't promote Matt Windsor over an employee who has 20 years more experience than he does. Plus, Shuler is in a protected class, and we would be inviting an age-discrimination lawsuit. It makes no sense, professionally or legally."

But perhaps Powell, in her mind, could take care of that issue by making my work life so miserable that I would seek a transfer, get an external job, or die. I doubt that she cared which route I took--as long as I wasn't a perceived roadblock to her grand plans.

When Powell informed me on or about April 15, 2008, that she was going to give me an oral warning for failing to fill out a vacation sheet to her satisfaction, I decided that the situation had become so alarming that I had to say something. I told Powell that it looked to me like she was discriminating against me because of her desire to promote my much younger colleague. She proceeded to then hit me with a written warning for alleged "unprofessional conduct."

I met with Dale Turnbough roughly one week later (on or about April 23) and told her of my concerns that I was being discriminated against because of my age. I also told Turnbough of Powell's plans regarding Matt Windsor--which appeared to be news to Turnbough--and that the discrimination seemed to coincide with Powell's disclosure about those plans. Turnbough indicated that she would take care of the problem.

On that same date, I filed a formal grievance against Powell in UAB Human Resources.

Exactly two weeks later, on May 7, I was placed on administrative leave and told my computer usage was being "investigated." This happened even though no one had questioned my computer use before--given me any warnings, etc.--and no one else in our group was being "investigated." This happened even though UAB policy states that an employee is to use the grievance process without fear of reprisal.

On May 19, I was fired. I would say I faced a pretty clear reprisal for filing a grievance and complaining about discrimination. So much for UAB's policies.

By my unofficial count, it took 18 work days for me to be fired after complaining to Powell's superior about age discrimination. If you add weekends, it was 26 days.

Retaliation cases often hinge on the time frame involved. If an employee complains about unlawful activity in the workplace and faces an adverse job action nine months later, a retaliation claim might not hold up.

But the 11th Circuit, which hardly is know for its favorable treatment of employees, says an adverse job action roughly 25 days after a formal complaint is significant.

Tamarah Grimes was fired from her Justice Department job in Montgomery, Alabama, roughly eight days after writing a letter to Attorney General Eric Holder about misconduct in her office. I was fired 18 to 26 days after complaining about unlawful discrimination at UAB.

We live in a world where some employers show stunning arrogance and stupidity--not to mention disregard for the law. UAB and the U.S. Justice Department have shown that they are among those employers. Now it looks like Home Depot has joined them.

This is a major national story, but you probably haven't read about it in your local newspaper. The NAF operates all over the country, and I've been targeted here in Alabama. You, or someone you know, probably has been targeted.

Reports the Minneapolis/St. Paul Business Journal:

National Arbitration Forum had represented itself to consumers facing debt disputes with creditors as an independent body that operated like an impartial court system. In fact, Swanson alleged, the company worked alongside creditors and against the interests of consumers.

After having personal experience with the National Arbitration Forum, I took more than a little delight in seeing the outfit tuck tail and run when its corrupt practices were about to be exposed. Reports the Business Journal:

The settlement does not include an admission of guilt or responsibility by the company. National Arbitration Forum is exiting consumer arbitration because of legal costs, legislative uncertainty surrounding arbitration and the economic climate, according to a statement by the company’s CEO Mike Kelly.

Uh, right. It had nothing to do with the fact that Lori Swanson--who should become a candidate for national office, in my view--was about to unmask these scoundrels.

I'll help Ms. Swanson out because I know how the NAF works.

My wife and I have seen our financial picture become less stable than it used to be after having corrupt Alabama lawyers and judges essentially steal large chunks of our personal wealth. That caused us to hear from a California-based outfit called Portfolio Recovery Associates and a law firm called Eskanos & Adler. They told us that we would be forced into having the NAF "arbitrate" our dispute.

The arbitrator turned out to be William A. Ratliff, a lawyer with the Birmingham firm of Wallace Ratliff Jordan and Brandt. Could I count on Mr. Ratliff to be an impartial arbiter? Well, check out his bio and notice his areas of practice. Near the top is "creditors' rights." That would be folks like credit-card companies and debt collectors.

Do you see anything on Ratliff's bio that indicates he gives a whit about consumer rights? Neither do I.

In a letter dated September 10, 2008, NAF informed me that--surprise, surprise--Ratliff had ruled in favor of Portfolio Recovery Associates. You have to read the letter's fine print to understand the corrupt nature of the entire process. Consider these nuggets:

4. An arbitration hearing notice was duly delivered to the parties as required by the forum rules.

No hearing notice was delivered to me.

5. The arbitrator conducted a hearing in this case in accordance with the forum rules.

No hearing was conducted in my case. If it was, I wasn't there. Do forum rules allow the arbitrator to conduct a hearing when one of the parties hasn't been noticed and isn't there as a result?

What was the bottom line in my experience with the NAF? I had a finding against me, even though the arbitrator never notified me of a hearing and never conducted a hearing. He never heard any evidence from me, but ruled against me anyway.

Is it any wonder that the Minnesota attorney general felt compelled to act?

I am just one of hundreds of thousands of Americans--maybe millions--who have been subjected to the NAF scam. No one has made any effort to collect the award against me--and I guess they won't, now that the NAF has hightailed it out of the consumer business.

But this story should not end with the Minnesota settlement. Law firms all over the country have willingly and knowingly participated in this NAF scam. Wallace Jordan Ratliff & Brandt has a lot of company around the country.

Will other attorneys general hold these law firms accountable? Will someone at the national level take action?

The task of cleaning up sleaze from the National Arbitration Forum should not be ending. It should be just beginning.

Thursday, July 16, 2009

An attorney for Sarah Palin has threatened to sue any news organization that reports the Alaska governor is stepping down because of a federal investigation. But attorney Thomas Van Flein might want to watch his step. If he files a defamation lawsuit that isn't based on fact or law, he could wind up bringing a lawsuit upon himself--and Palin.

In fact, an ongoing case in Missouri shows how a poorly supported defamation lawsuit can wind up putting the plaintiff, and his or her attorney, in legal hot water.

In a letter dated July 4, Van Flein said a number of Web sites had published defamatory material about Palin, making special mention of Alaska blogger Shannyn Moore. Van Flein also threatened legal action against mainstream news outlets who might re-publish the material, mentioning The New York Times, Washington Post, Huffington Post, and MSNBC.

There is only one problem with these threats--the published material in question is not remotely defamatory. And if Van Flein and Palin file a lawsuit claiming it is, they might wind up wishing they had thought better of it.

The published reports center around allegations that Palin resigned because of a possible criminal investigation surrounding construction of the Wasilla Sports Complex. As Van Flein's letter makes clear, the story originated with an October 2008 report in the Village Voice.

Van Flein should know that other journalists have the legal right to cite and build on the Voice's reporting. Interestingly, Van Flein's letter gives no indication that he intends to sue the Village Voice.

In fact, Van Flein's letter shows that he has a poor grasp of defamation law--or he is simply blowing smoke, at the Palins' behest.

New York Times v. Sullivan is the governing law in a defamation case involving a public figure/public official, such as Palin. And it sets an extremely difficult standard for plaintiffs to meet. Under Sullivan, material must be published with "actual malice" (actual knowledge of falsity or reckless disregard for the truth) in order to be defamatory.

When journalists such as Moore build on a story that originated in the Village Voice, they are not coming close to the "actual malice" standard required by Sullivan. And Van Flein surely knows that.

So what if he wound up filing a defamation lawsuit on Palin's behalf against a journalist or news organization for reporting about the Wasilla Sports Complex allegations? He and Palin might live to regret it.

That's because of a tort called malicious prosecution. And a Missouri case styled, Donald R. Ehrhardt v. Ronald J. Herschend, indicates malicious prosecution can be an effective remedy for those hit with baseless defamation lawsuits. Paul Benton Weeks, who has become a key figure in the Don Siegelman case, represents Ehrhardt.

Ehrhardt and Herschend were candidates for separate offices in Taney County, Missouri, in 2004. During the course of the campaign, Ehrhardt caused a political advertisement to be published in a local newspaper, stating that Herschend had admitted to breaking into a locked county facility during a public meeting. A second political advertisement retracted three assertions that had been made in the first piece.

Herschend filed a defamation lawsuit, claiming that Ehrhardt had been told by the county attorney, prior to publication, that the first political advertisement was inaccurate.

Ehrhardt, however, said he had never shown the ad to the county attorney and wound up prevailing on summary judgment in the defamation case.

Ehrhardt then filed a malicious prosecution lawsuit, stating that Herschend never had probable cause to bring the defamation claim. A trial court dismissed the malicious prosecution case on summary judgment, but an appellate court reversed, ruling that the case can move forward.

We have written extensively here at Legal Schnauzer about malicious prosecution because it has played a major role in my legal headaches. Malicious prosecution is considered a "disfavored tort," and here is what Alabama law says about it:

Malicious-prosecution actions are disfavored in the law. Cutts v. American United Life Ins. Co., 505 So. 2d 1211, 1214 (Ala. 1987). Our Supreme Court has stated: "One of the reasons for this rule is that public policy requires that all persons shall resort freely to the courts for redress of wrongs and to enforce their rights, and that this may be done without the peril of a suit for damages in the event of an unfavorable judgment by jury or judge."

In the hands of a corrupt attorney, such as William E. Swatek of Alabama, malicious prosecution can be used as a club to victimize someone who probably has been victimized at least once already. That's what happened to me.

Swatek's client, our troublesome neighbor Mike McGarity, admitted in a criminal case that he had trespassed on our property. The judge decided to ignore the facts and law in the case, giving McGarity multiple warnings about staying off our property but acquitting him of the criminal charge. One of the prerequisites for a malicious prosecution claim is that a prior case (criminal or civil) must have ended in your favor. The acquittal allowed McGarity to turn around and sue me, even though I had both probable cause and actual cause (he confessed!) for bringing the criminal complaint.

An honest judge would have booted McGarity's lawsuit in a heartbeat. But we don't have honest judges in Shelby County, Alabama, so I had to wind up fighting the bogus case for years, costing us (and Alabama taxpayers) thousands of dollars.

Paul Benton Weeks is showing in Missouri that malicious prosecution does have a legitimate, but limited, place in the law. Essentially, the tort has one purpose: To punish those who would abuse the legal process by filing baseless claims for "vexatious" reasons.

A Missouri appellate court has ruled that Ehrhardt had grounds to claim malicious prosecution as a result of Herschend's defamation lawsuit against him.

A teenager in Torrington, Connecticut, heard her mother scream from a vigorous round of sex and thought an assault was taking place. The teen gathered four of her friends, who proceeded to break into the bedroom and use a baseball bat to beat up mom's lover, leaving him with a black eye and multiple bruises.

The story was so deliciously bizarre that you figured it couldn't possibly be true. Turns out it probably wasn't--at least not all of it.

Mom, 34-year-old Melanie Arnold, was having sex with 25-year-old Roger Swanson. And four teens, at the urging of Arnold's 16-year-old daughter, did indeed take a baseball bat to various parts of Swanson's person. The daughter and three of her friends have been charged with assault and conspiracy; one of the teens was not charged.

But it appears the assault had more to do with sociology than sensational sex.

Our Legal Schnauzer team is committed to bringing you the news in only the most high-minded fashion. So we asked the question that must have been on everyone's mind upon hearing this story: What bedroom techniques was Loverboy employing in order to elicit a screaming response from Mom?

Turns out both Mom and Loverboy say the sex wasn't all that spectacular.

Drat.

Loverboy, er Swanson, said he probably was assaulted because Arnold's daughter resented him and didn't like the fact he was from the "wrong side of the tracks." The whole thing, Swanson said, probably was a setup. Swanson hated to admit that he wasn't doing anything special in the sack.

Drat again. I thought we might learn something valuable here.

The "sensational sex" angle started to fall apart when Arnold said she was only moaning during sex, not screaming. Swanson agreed with his partner's assessment.

So what were the teens really up to? Here's how the Torrington Register-Citizen reported it:

Arnold’s daughter and friends didn’t like Swanson and let him know on previous occasions, he said. Swanson, an avid NASCAR fan, was raised on a farm and works as a farm hand in the Washington, Conn. area. “I guess it’s because I’m a bit of a redneck. Maybe they didn’t like the way I acted or spoke or because I grew up in New Preston,” Swanson explained. A week before the incident the youths chased him out of Arnold’s house.

“When I saw them come in Melanie’s bedroom I thought, ‘Uh-oh, here we go’ and one of them pointed at me and said ‘We got you’,” he said.

The beating was not a pleasant experience, Swanson said:

“It sounded like hail on a car windshield. They were hitting me so much,” Swanson said. It’s been a month, and he said he still feels pain in his back.

Shockingly, Swanson and Arnold are no longer dating. Arnold has asked Swanson to drop the charges against the teens, but it doesn't sound like he's thinking in that direction. Swanson said he hopes the case is a "wake up call" for his attackers:

“I pray to God they ‘get it’ and don’t spend the rest of their lives in jail,” Swanson said. “You just can’t act like this—with violence—this extreme when they don’t like something.”

The worst part for Swanson? Maybe it's this: Rumors about his sexual prowess are dying down:

“I wouldn’t mind the publicity a little longer—maybe the Today show or Katie Couric,” he joked. “I have had a lot of hits on my Myspace, but no proposals yet.”

Wednesday, July 15, 2009

U.S. Sen. Jeff Sessions (R-AL) has been front and center this week at the Sonia Sotomayor confirmation hearing, repeatedly stating that politics and personal feelings must be kept out of the justice system.

But a recent article at mainjustice.com shows that Sessions has no problem interjecting his own politics and personal feelings into the justice system. In fact, Sessions' personal feelings and biases are having a profound impact on the search for a new U.S. attorney in the Middle District of Alabama.

In his opening statement at the Sotomayor confirmation hearing, Sessions states that "impartiality" is at the heart of his vision for the justice system:

Down one path is the traditional American legal system, so admired around the world, where judges impartially apply the law to the facts without regard to their own personal views. . . .

Down the other path lies a Brave New World where words have no true meaning and judges are free to decide what facts they choose to see. In this world, a judge is free to push his or her own political and social agenda. I reject this view.

Does Sessions keep his own political and social agenda out of behind-the-scenes activities related to the justice system? Not exactly.

Mainjustice.com reports that Sessions played a leading role in rejecting Michel Nicrosi, of Mobile, for the U.S. attorney post in Alabama's Middle District, based in Montgomery.

Nicrosi was the No. 1 choice of a committee headed by U.S. Rep. Artur Davis (D-AL), the state's senior congressional Democrat. Considering that the appointment will be made by a Democratic administration, one might think the Davis committee would win the day.

But Jeff Sessions had other ideas. Did his political and personal biases play a part in the decision to fight the Nicrosi appointment? Oh yes, reports mainjustice.com.

According to the Sessions world view, Nicrosi had several strikes against her:

* She had successfully defended a top aide to former Democratic Governor Don Siegelman against racketeering charges;

* Nicrosi had spoken out forcefully against a Bush-appointed U.S. attorney named David York, who became embroiled in a sex scandal.

* There is bad blood between Nicrosi and one of Sessions' close friends and proteges, a gentleman named Richard Moore. Here is how mainjustice.com describes the situation:

In the 1990s, Clinton-appointed U.S. Attorney Don Foster in the Southern District of Alabama chose Nicrosi over Moore to head the office’s criminal division. Moore was a prosecutor in the office who’d been hired by Sessions. Then as criminal division chief, Nicrosi required prosecutors to create standard plea bargain language and write prosecution memos--professional practices that the office had neglected, say people familiar with the Southern District. The extra work load didn’t sit well with some veterans in the office, the people say.

Is Jeff Sessions a petty, vindictive little man who can let his own biases rule the day? Consider a written statement, titled "The Grandfather of Political Prejudice in Alabama," released yesterday from Don Siegelman:

At least one Republican on the Senate Judiciary is playing hard ball with President Obama’s nominations. The new minority leader on the Senate Judiciary Committee is Alabama’s Jefferson Beauregard Sessions III. I ask, "What moral ground gives Senator Sessions the right to berate Sotomayor because she believes her background as a minority makes her even more qualified to serve on the Supreme Court?"

Sessions is the man who once said, “I thought the Klu Klux Klan was a pretty good group of guys until I heard they smoked pot.” Jeff Beauregard Sessions has always been on the wrong side of justice.

Jeff Sessions used his position as U.S. Attorney to go after Alabama black political activists to suppress black voter turnout. The FBI under Sessions direction rounded up black activists, loaded them on a bus with a state trooper escort, had them finger printed, photographed and made to give a hand writing sample. Sessions put a retired school teacher, Julia Wilder, in Alabama’s only maximum security prison for women at the age of 72 because she went door to door encouraging her neighbors to vote--and if they were going to be out of town, she arranged for them to get an absentee ballot!

That's the same Jeff Sessions who is now a road block to President Obama’s choice for the U. S. Supreme Court.

Siegelman is not the only Alabamian to speak out about Sessions. In an article at AfterDowningStreet.org., Alabama attorney and whistleblower Jill Simpson questions whether Sessions has the moral standing to serve on the Senate Judiciary Committee. Simpson discusses her personal knowledge of some missing GOP records that might have curious connections to Jeff Sessions.

The bottom line? Jeff Sessions might be saying one thing for the cameras this week at the Sotomayor hearings. But substantial evidence indicates he acts in a wholly different manner when the cameras are turned off.

Lori Swanson's lawsuit against the Minneapolis-based National Arbitration Forum (NAF) also might shine much needed light on third-party debt buyers, who form perhaps the sleaziest component of the American financial-services industry.

We've had personal experience with third-party debt buyers and the NAF, and we introduced them to you in a post titled: "A Schnauzer Warning: Beware of Bottom Feeders." We've also seen firsthand how debt buyers and the NAF routinely violate the Fair Debt Collection Practices Act (FDCPA), which governs their activities.

Our Legal Schnauzer team hardly is alone in trying to warn consumers about the lowlifes they might encounter from the debt-collection world. Business Week has a splendid overview article about the Minnesota lawsuit, including a link to an investigative report from about a year ago on the NAF.

The Alabama Consumer Law Blog, based in Birmingham, takes an in-depth look at the Minnesota case, including key segments of the lawsuit itself.

What's at the heart of the case against the National Arbitration Forum? Business Week reports:

The civil suit filed against the National Arbitration Forum in state District Court in Minneapolis alleges that far from being an impartial venue for resolving such disputes, the NAF has conflicting ties to major collection law firms that represent credit-card companies. Indeed, the case claims that New York hedge fund Accretive LLC—in which Seagram heir Edgar Bronfman Jr. is a general partner—has cross ownership of such major collection law firms and the NAF, sending collection cases between the two. The suit also alleges Accretive is involved in the arbitration firm's business development. Accretive isn't named as a defendant in the suit. There is no allegation of wrongdoing by Bronfman.

Among the debt-collection firms that Accretive has acquired is a California-based outfit called Eskanos & Adler. We've had firsthand experience with Eskanos & Adler and seen how the firm violates the FDCPA with impunity.

How is the NAF cheating American consumers? Business Week reports:

"The Forum represents to the public, the courts, and consumers that it is independent, operates like an impartial court system, and is not affiliated with any party," says Attorney General Lori Swanson's suit, which charges NAF with consumer fraud, deceptive trade practices, and false advertising. "The consumer does not know that the Forum works alongside creditors behind the scenes—against the interest of consumers."

"These practices go to the foundation of our legal system," Swanson adds in an interview. "Impartial resolutions of disputes are what democracy is all about, and the actions of this company undermine justice and are a threat to the legal system."

NAF and its cronies in the debt-collection industry have tentacles that can reach consumers all over the country. They've reached my wife and me here in Alabama.

A Birmingham-based law firm called Ingram & Associates has repeatedly harassed us, trashing the FDCPA in the process. The firm is led by a woman named Angie Ingram, and I have tape-recorded evidence that shows in stark detail how her outfit conducts business in an unlawful and sleazy manner.

I also have evidence that Ingram often works in conjunction with a Pennsylvania-based company called NCO. If you want to have some fun, key the words "NCO fraud" or "NCO scam" into Google. Then sit back and see how much material comes up. You can keep yourself reading for days.

Kudos to Lori Swanson of Minnesota for having the guts to take on the NAF and its credit-card buddies. We intend to do our part here in Alabama to expose the seedy world of third-party debt buyers.

Tuesday, July 14, 2009

Word in Alabama political circles is that a fix might be in--again--on the case of former Governor Don Siegelman.

What kind of fix is it this time? Word is that Jeff Sessions and Richard Shelby, Alabama's two Republican U.S. senators, have struck a deal with the Obama administration that would allow Bush-appointed prosecutor Leura Canary to remain in control of the Siegelman case.

Is this for real? Alabama Rep. John Rogers (D-Birmingham) reportedly spoke openly about the deal at a civil-rights breakfast on Sunday and asked those present to contact Obama Chief of Staff Rahm Emanuel. Siegelman is taking it seriously; he sent an e-mail to supporters, urging them to contact Emanuel and demand that Canary be removed from office.

How important could this be? Consider Siegelman's own words:

First, we have to get Rahm Emanuel's attention because he will be the most important adviser to President Obama in this regard, and second, we need to get the National Democratic Party involved immediately.

I am in a time squeeze. My attorneys just filed a motion for a new trial based on newly discovered evidence that proves prosecutorial misconduct by my prosecutors; withholding evidence, reshaping the testimony of witnesses, and knowingly presenting false testimony. The conduct has been outrageous. Now the judge has given this same Bush appointed U.S. Attorney until July 28th to respond to these charges.

It is nonsense to think that the same Bush appointed prosecutors who perpetrated this misconduct will fairly review my charges of misconduct against them.

Siegelman urges his supporters, and others who care about justice, to take immediate action:

That's why I am pleading with you to:

1) Call or e-mail Rahm and ask him to help ensure that President Obama's, not President Bush/Karl Rove's, prosecutors decide my fate--by immediately removing these biased prosecutors from this case.

2) Call or e-mail the Democratic National Party Chairman, Governor Tim Kaine, and stress that the Democratic Party ask Eric Holder to remove these partisan prosecutors. Remember my prosecutor is the wife of Karl Rove's best friend, business and political partner. My prosecutor's husband has been identified in sworn testimony as having said he got Rove to get the DOJ to go after me. My prosecutor's husband was also my Republican opponent's campaign manager!

My motion for a new trial was based on the misconduct of this U.S. Attorney in withholding critical evidence that would have made a difference in my trial. The rabid Rove prosecutors must be immediately removed by the Obama Administration if I am ever to get a fair and impartial review of my case.

PLEASE, PLEASE call and write today. Ask for the removal of Leura Canary and her prosecutors, and ask that DOJ in Washington appoint unbiased prosecutors to review my motion for a new trial.

The mind races with questions about what might be going on regarding the U.S. attorney position for the Middle District of Alabama:

* Would the Obama administration stoop so low as to cut a deal with the likes of Sessions and Shelby?

* Is this a "quid pro quo" in order to get Sessions and Shelby to support U.S. Supreme Court nominee Sonia Sotomayor?

* Why are Sessions and Shelby so concerned about the Middle District of Alabama, based in Montgomery, while they've said very little publicly about the U.S. attorney posts in the Northern District (Birmingham) and Southern District (Mobile)? Is it possible that Sessions and Shelby themselves have dirty laundry in the Middle District--and they don't want to risk having it uncovered by a real U.S. attorney?

* Would a real investigation of the Siegelman case focus heavily on the trial judge, Mark Fuller? Would that unleash a stench that Sessions and Shelby want no part of? For example, do Sessions and/or Shelby have business ties to Fuller that the senators would like to keep under wraps?

* What on earth is going on with the Obama Justice Department. Will it remain forever clueless, shiftless, and spineless?

* Alice Martin, former U.S. attorney for the Northern District of Alabama, claims in a recent article at mainjustice.com, that she was not pushed out by the Obama crowd. Could this be a rare instance where Alice Martin actually is telling the truth?